Professional Documents
Culture Documents
2d 579
At trial, Dunning did not testify nor were any witnesses called in her behalf.
This is mentioned merely to show that all evidence adduced at trial was
presented by the government. It was the government's theory of the case that
Kelley and Dunning organized a business entity known as Shannon Financial in
which they were both corporate officers, and that through the use of this
company they conspired to commit bank fraud and mail fraud by obtaining
loans from various banks and from I.T.T. Financial Corporation by means of
false pretenses.
3
Counsel also argues that any use of the mails must be in furtherance of the
scheme to defraud in order to come within the mail fraud statute and suggests
that Dunning obtained the loan in question before the loan application was
approved by I.T.T. in Englewood, Colorado and before it was mailed back to
the local I.T.T. office in Oklahoma City, Oklahoma. However, in a mail fraud
case it is not necessary that the mailing predate the defendant's receipt of the
loan proceeds. United States v. Sampson, 371 U.S. 75, 80-81, 83 S.Ct. 173,
17576, 9 L.Ed.2d 136 (1962); United States v. Bottom, 638 F.2d 781, 785 (5th
Cir.1981); Sparrow v. United States, 402 F.2d 826, 829 (10th Cir.1968).
Further, mailings which facilitate concealment of a fraudulent scheme meet the
"furtherance" requirement. United States v. Walker, 915 F.2d 1463, 1466 (10th
Cir.1990) and United States v. Rauhoff, 525 F.2d 1170, 1176 (7th Cir.1975). In
the instant case there was testimony that if the approved loan application was
not in the file at the local Oklahoma City office, there would be an internal
investigation of the matter.
6
In sum, we believe the evidence concerning the use of the mail and whether the
use was in furtherance of the false scheme was such as to require submission of
those issues to the jury.
Counsel next argues that an essential element of Count 11 was that I.T.T.
suffered an "actual pecuniary loss." In this regard, the evidence was that
Dunning did obtain the loan in question and there is nothing to indicate
repayment. In any event, the gist of Count 11 is devising a scheme to defraud
with a purpose of executing the scheme; the ultimate success or failure of the
scheme is immaterial. United States v. Stewart, 872 F.2d 957 (10th Cir.1989).2
Counsel next argues that the evidence was insufficient to convict Dunning of
witness intimidation. Count 12 charged Dunning with intimidating and
threatening to use physical force with an intent to hinder, delay and prevent
Harold Ferry, Denise Buettner or Troy Smith from communicating to law
enforcement officers information relating to the commission or possible
commission of a federal crime in violation of 18 U.S.C. Sec. 1512(b)(3). The
evidence was that when Ferry and the others were present at a meeting with
Dunning (Ferry had a concealed recorder on his person at the meeting),
Dunning, when talking about Claudia Lamb who was not present at the
meeting, said that if Claudia Lamb caused her mother to go to jail, "she will not
be on the face of this earth any longer. That goes for her or anyone else ..."
Based on that evidence, a jury could reasonably conclude that Dunning was
threatening not only Claudia Lamb, but "anyone else" who would cause her
mother to go to jail. Such would constitute a threat against Ferry and the others
who were present at the meeting. This threat would conceivably tend to make
them think twice before going to law enforcement officers and giving
information concerning Dunning's mother. Under 18 U.S.C. Sec. 1512(b)(3) a
threat does not necessarily have to succeed and cause the person threatened to
refrain from giving information to law enforcement officers. See United States
v. Capo, 791 F.2d 1054, 1069 (2d Cir.1986). United States v. Maggitt, 784 F.2d
590, 593 (5th Cir.1986). Furthermore, the jury instructions were such as to
preclude the possibility that the jury convicted Dunning of making threats
against Ferry because of the fact that she previously had made threats against
Claudia Lamb.
10
In addition to the forty-six month term of imprisonment, the district court also
entered a restitution order requiring Dunning to pay to the several banks and to
I.T.T. the sum of $192,092. Counsel argues that there is nothing in the record to
support such order. We agree. There is no indication of any present ability to
pay anything. Nor is there anything to indicate that after her release from
prison, Dunning would have an "earning potential" which would enable her to
comply with a restitution order of this magnitude. See United States v. Rogat,
924 F.2d 983 (10th Cir.1991).
11
The restitution order is reversed. Otherwise, the judgments and sentences are
affirmed.
Marilyn Kelley was convicted on ten counts and by separate appeal sought
reversal of her convictions and sentences. Except for the district court's
restitution order, Kelley's convictions and sentences have now been affirmed
contemporaneously with the filing of the present opinion. See United States v.
Kelley, 929 F.2d 589 (10th Cir.1991)
Counsel's reliance on McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875,
97 L.Ed.2d 292 (1987) is misplaced. There the Supreme Court held that the
mail fraud statute does not extend "to the intangible right of the citizenry to
good government." Id. at 356, 107 S.Ct. at 2879